NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 18-1239

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CORNERSTONE RESIDENCE, INC.,

 Appellant

v.

CITY OF CLAIRTON, Pennsylvania; GEORGE GLAGOLA 

On Appeal from the United States District Court

for the Western District of Pennsylvania

(District Court No. 2-17-cv-00706)

District Judge: Honorable Nora B. Fischer

Argued on September 11, 2018

Before: JORDAN, VANASKIE and RENDELL, Circuit Judges

(Filed: December 31, 2018)

Donald Driscoll (Argued)

Community Justice Project

100 Fifth Avenue, Suite 900

Pittsburgh, PA 15222

Brian V. Gorman

Southwestern Pennsylvania Legal Aid Society

10 West Cherry Avenue

Washington, PA 15301

Counsel for Appellant
2

John C. Hansberry (Argued)

Nathan J. Marketich

Fox Rothschild

500 Grant Street

BNY Mellon Center, Suite 2500

Pittsburgh, PA 15219

Counsel for Appellee

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O P I N I O N

RENDELL, Circuit Judge:

Cornerstone Residence, Inc. is a non-profit corporation established to operate 

sober living residences for recovering drug and alcohol addicts. It wanted to establish 

one such residence in the City of Clairton, so it executed an agreement of sale to purchase

a house and sought an occupancy permit from the City. Cornerstone argues that the City

considered the residence to be a Treatment Center and denied its application because 

such centers were not permitted in that location. Cornerstone challenged this denial, 

urging that the City is discriminating against recovering addicts in violation of the Fair 

Housing Amendments Act (“FHAA”). In its view, the zoning ordinance (“the 

Ordinance”) that the City purportedly relied on to deny its application was both 

discriminatory as applied to Cornerstone and discriminatory on its face. The District 

Court dismissed both claims. 

 

 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
3

Cornerstone appeals only the facial challenge. It argues that the definition of 

Treatment Center in the Ordinance facially discriminates against recovering addicts—a 

protected group under the FHAA—by limiting where residences that serve them may be 

located. We agree, however, with the City and the District Court that the Ordinance does 

not facially discriminate against recovering addicts. Therefore, we will affirm the 

District Court’s order. 

I

Cornerstone brings only a facial challenge. Thus, Cornerstone’s claim requires us 

to determine whether the explicit terms of the Ordinance are discriminatory. This inquiry 

is largely one of statutory interpretation. Therefore, we will limit our background 

discussion to the Ordinance and the FHAA. 

Like most American cities, Clairton regulates the use of property through zoning 

ordinances. As relevant here, Clairton does not permit a Treatment Center to be located

in residential areas. Clairton Ordinance at Table 301. The definition of Treatment Center 

encompasses several uses, including:

A use (other than a prison or a hospital) providing housing for three or more 

unrelated persons who need specialized housing, treatment and/or counseling 

because of ... [c]urrent addiction to a controlled substance that was used in an 

illegal manner or alcohol...

Id. at § 337-12. 

In 1988, Congress passed the Fair Housing Amendments Act to prohibit housingrelated discrimination against handicapped persons. Pub. L. No. 100–430, § 6, 102 Stat. 
4

1619, 1620–21 (1988). The FHAA defines handicap as “a physical or mental impairment 

which substantially limits one or more of such person’s major life activities ... but such 

term does not include current, illegal use of or addiction to a controlled substance.” 42 

U.S.C. § 3602(h). The FHAA, therefore, provides that current addicts are not a protected 

group. However, we have held, consistent with other courts, that recovering addicts are. 

See Lakeside Resort Enterprises, LP v. Bd. of Sup’rs of Palmyra Twp., 455 F.3d 154, 156

n.5 (3d Cir. 2006) (“We note that at least two other courts have held that recovering 

alcoholics and drug addicts are handicapped, so long as they are not currently using 

illegal drugs.”).

Cornerstone brought both an as-applied and a facial discrimination claim under the 

FHAA at the District Court. The District Court granted the City’s motion to dismiss both 

claims. First, the Court held that Cornerstone’s as-applied challenge was not ripe, as 

Cornerstone had not exhausted its administrative remedies by appealing its denial to the 

Zoning Board. Second, although the Court found that Cornerstone’s facial claim was 

ripe under Third Circuit precedent, see County Concrete Corp. v. Town of Roxbury, 442 

F.3d 159, 164 (3d Cir. 2006), it held that the definition of Treatment Center did not 

violate the FHAA. Cornerstone appealed the District Court’s dismissal of its facial 

challenge.1

 

1 The District Court had federal question jurisdiction pursuant to 28 U.S.C. § 1331. We 

have appellate jurisdiction pursuant to 28 U.S.C. § 1291. We review this grant of a 

motion to dismiss de novo. Fallon v. Mercy Catholic Med. Ctr. of Se. Pennsylvania, 877 

F.3d 487, 489 n.5 (3d Cir. 2017).
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II

Typically, a plaintiff is required to show that “some discriminatory purpose was a 

‘motivating factor’” to prevail in a FHAA claim. Cmty. Servs., Inc. v. Wind Gap Mun. 

Auth., 421 F.3d 170, 177 (3d Cir. 2005). But such a showing is not required “where a 

plaintiff demonstrates that the challenged action involves disparate treatment through 

explicit facial discrimination.” Id. Because Cornerstone attempts to show this sort of 

“explicit facial discrimination,” we focus on the “explicit terms of the discrimination” as 

opposed to the manner in which it was applied to the plaintiff. Id. (citing Int’l Union, 

United Auto. Aerospace & Agric. Implement Workers v. Johnson Controls, Inc., 499 U.S. 

187, 199 (1991)). 

We apply Pennsylvania law when interpreting a municipal ordinance. See

Borough of Fleetwood v. Zoning Hearing Bd. of Borough of Fleetwood, 538 Pa. 536, 548 

(Pa. 1994). Accordingly, we are guided by the rules set forth in the Statutory 

Construction Act of 1972, 1 Pa.C.S.A. § 1921, as interpreted by the Pennsylvania 

Supreme Court. These rules instruct us that “[z]oning ordinances are to be construed in 

accordance with the plain and ordinary meaning of their words.” Upper Salford Twp. v. 

Collins, 669 A.2d 335, 337 (Pa. 1995). “Where the words in an ordinance are free from 

all ambiguity, the letter of the ordinance may not be disregarded under the pretext of 

pursuing its spirit.” Bailey v. Zoning Bd. Of Adjustment of City of Philadelphia, 569 Pa. 

147, 163 (2002). But when the ordinance is not clear, the legislature’s intent may be 

discerned by considering a variety of other factors. See 1 Pa.C.S.A. § 1921 (c). 
6

Cornerstone advances two main arguments in support of its argument that the 

Ordinance facially discriminates against recovering addicts: first, the phrase “was used” 

expands the phrase “current addiction” to include recovering addicts; and second, the 

context and structure of the Ordinance reflect the legislative intent to adopt that meaning. 

We find, however, that the text is clear: housing for recovering addicts is not included in 

the definition of Treatment Center. Furthermore, even if the text was ambiguous, the 

overall structure and surrounding circumstances of the Ordinance evince a legislative 

intent consistent with our reading. 

A

First, the plain meaning of the definition of Treatment Center does not include 

recovering addicts. The plain meaning of “[c]urrent addiction to a controlled substance 

that was used in an illegal manner or alcohol” is most naturally read to be limited to 

current addicts. Clairton Ordinance at § 337-12 (emphasis added). But Cornerstone 

argues that the phrase “was used” transforms the term “current addiction” into “current 

and past addiction.” The thought being: a current addiction to a drug that was used

implies that the use and addiction are in the past and, therefore, not current.

This interpretation places inordinate weight on the phrase “was used.” The use of 

this phrase (albeit a past tense verb phrase) is no reason to depart from the otherwise 

plain meaning of “current addiction.” This becomes evident when one considers that a 

current addiction “does not require that a drug user have a heroin syringe in his arm or a 

marijuana bong to his mouth at the exact moment contemplated.” Shafer v. Preston 
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Mem. Hosp. Corp., 107 F.3d 274, 278 (4th Cir. 1997). One can be currently addicted to 

a drug that was used in the past. That the use occurred in the preceding days or weeks 

does not alter one’s status as a current addict. See, e.g., Salley v. Circuit City Stores, 

Inc., 160 F.3d 977, 980 n.2 (3d Cir. 1998) (finding, under the ADA, that the term “current 

user” includes individuals who have abstained from drug use for three weeks).

B

Second, even if the terms of the Ordinance were ambiguous, the overall context of 

the Ordinance confirms the City’s interpretation. When discerning the legislative intent 

of an ordinance, we presume that law-makers are “knowledgeable about existing law 

pertinent to the legislation it enacts.” Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 

184-85 (1988); see also 1 Pa.C.S.A. § 1921(c) (“When the words of the statute are not 

explicit, [courts may consider] other statutes upon the same or similar subjects.”). 

With this principle in mind, we find that the Ordinance, read as a whole, reflects a 

familiarity with and an intent to conform to the FHAA. The Ordinance includes another 

category, “Group Homes,” that would seem to encompass recovering addicts, as it states: 

“[i]t is the express intent of the City to comply with all provisions of the Federal Fair 

Housing Act, as amended, and regulations promulgated thereunder, in the construction of 

this term.” Zoning Ordinance at § 337-12. This is consistent with the definition of 

Treatment Center, in which the language closely mirrors the language of the FHAA: 

“[c]urrent addiction to a controlled substance that was used in an illegal manner or 

alcohol” is nearly identical to the FHAA’s description of the unprotected classification; 
8

namely, “addiction caused by current, illegal use of a controlled substance.” These

considerations favor reading the Ordinance in harmony with the FHAA. Thus, Treatment 

Center would include only the unprotected class.2

III

For these reasons, we find that the Ordinance does not facially discriminate 

against recovering addicts in violation of the FHAA. Therefore, we will affirm the 

District Court’s order. 

 

2 Because we are not presented with an as-applied challenge, we do not reach the issue of 

whether Cornerstone’s operations were properly considered to be a Treatment Center.